Essays on law, leadership, technology, and "things" – and arts, culture, intellectual property, and commons – and entrepreneurship and innovation – and higher education – and Pittsburgh and urbanism. One law professor's views of the world.

About the author

I have been posting at madisonian.net since 2004. From 2003 to 2011, I also wrote at Pittsblog, about regional economic development and the re-emergence of one particularly interesting city and region: Pittsburgh, Pennsylvania. Pittsburgh-themed posts will appear here from time to time.

I publish a related calendar of academic events in intellectual property and information technology law and policy at IP and IT Conferences.

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Category: Online Norms and Culture

As folks start to claim they saved the Internet and rally for alleged ways to keep the Internet open for all, I want to call out something Rep. Issa said at Stanford in April. Step one, and to me the but-for moment, in stopping SOPA and PIPA was the security and CS community speaking (which was rare) about just how dangerous (“A potpourri of dumb things” – Issa at around 8:15) the bills were. Without that the activism probably could never have gotten in place. Furthermore, as I noted elsewhere, science can shift. Science is, by definition, amoral. If you build it, it will work. So expect the copyright industry to demand new things. Expect them to hire and fund studies about how to get what they want without going using “A potpourri of dumb things.” And note that Google’s recent shift in approach regarding links and alleged pirate sites shows that things change.

This is not an apolitical moment. It is deeply political, but pretends that it is not about a power shift. When Internet and tech companies swear they are there for you, be skeptical. In some senses they are. Many folks I know at Google really are interested in serving users. Many are also scientists who will pursue, as they should, the truth of what is possible. The current bus-stop tour by Reddit’s co-founder, Alexis Ohanian is political. Per the Washington Post, for him, “[T]he key issue is getting Internet openness on the minds and into the talking points of politicians in this election.”

What does openness mean? What are the politics of openness? Why do Facebook, Google, Reddit want openness? South by Southwest looks like it may have panel on disrupting DC. The description reads like an evangelic rally (a good tip that thought is replaced by faith). But to its big credit (except for saying the questions will be answered), the panel looks at some decent issues:

1. The Industrial Revolution brought about a political realignment that created the existing party system. Can the Internet do the same?
2. Beyond “openness,” what are the essential characteristics that define the Internet’s political identity? Market oriented or socially conscious? Libertarian or progressive? (Or all of the above?)
3. Politically, does the Internet most resemble an interest group (like big business or labor unions), a movement, or something we haven’t seen before?
4. Is Internet culture weakening partisanship — or making it worse?
5. Technology drives growth, but some say it also kills jobs. How do we make sure that the benefits of the Internet are widespread? Is there a consistent political viewpoint here among Internet activists, or does this break down along typical political lines?

I doubt one panel can tackle all these questions. Much will depend on the panelists and whether the panel is really open in that it has voices other than those who all agree. Nonetheless, one thing that is missing is a deeper look at the power structures and history that inform the issue. For example, the idea of realigning parties still relies on parties. And, there is an essentialism to Internet identity that is ironic at best and willfully blind and lacking irony at worst.

Have I abandoned my Google brothers and sisters? Oh perhaps, but I don’t think so. These questions were ones I raised while there. Some disliked them. Some took them seriously. The people I respected and loved the most pushed me to dig into these points. Like society, Google has many people with many views and agendas. That’s the point. With all companies and all people asserting truth, administer several grains of salt, reflect, (maybe add some lime and tequila first). For those wishing a good book on the problems with saying we know where we are going, check Professor Wendy Brown’s work, especially Politics Out of History.

This chart (aka infographic, but really isn’t it just a chart?) shows changes in online behaviors (e.g., email, search,), some of the leading companies’ shares of activities, and the amount of time folks spend doing various things online. Wolfram Alpha lets you know how much YOU! YES YOU!! (insert reference to meat and pudding please), you spend on Facebook. The app allows you to datamine yourself, arguably just as Facebook does. I expect that someone could do some interesting papers with this app or at least confirm what we suspect: Facebook knows much about us; it will scramble to turn that into money. If ads don’t fly, expect more selling of data wholesale. Yep, I said it. More on that in another post.

because its existing copyright infringement reporting system generates a massive amount of data about which sites are most frequently reported — the company received and processed over 4.3 million URL removal requests in the past 30 days alone, more than all of 2009 combined. Importantly, Google says the search tweaks will not remove sites from search results entirely, just rank them lower in listings. Removal of a listing will still require a formal request under the existing copyright infringement reporting system — and Google is quick to point out that those unfairly targeted can still file counter-notices to get their content reinstated into search listings.

The data-driven basis makes sense to me. So what other areas could be monitored and adjusted? I disagree with the idea that search engines should take on policing roles for certain speech that Danielle Citron and others have urged. But this shift may open the door to more arguments for Google to be a gatekeeper and policer of content. Assuming enough data is available, Google or any data-driven service, could make decisions to include or exclude entries (or shift ranking). Those moves already happen. But the difficult question will now be why or why not act on some issues but not others. James Grimmelman has a work in progress on search and speech that gets into this question. I believe the algorithm issues still control. Nonetheless, by nodding to the copyright industry, Google may be opening the door to further calls to be the Internet’s gatekeeper. Of course, if it does that, others will attack Google for doing just that from competition and other angles.

Following my contrarian post about how to read the Computer Fraud and Abuse Act, I thought I would write about the Communication’s Decency Act. I’ve writtenabout the CDAbefore (hard to believe it has been almost 3 years!), but I’ll give a brief summary here.

The CDA provides immunity from the acts of users of online providers. For example, if a user provides defamatory content in a comment, a blog need not remove the comment to be immune, even if the blog receives notice that the content is defamatory, and even if the blog knows the content is defamatory.

I agree with most of my colleagues who believe this statute is a good thing for the internet. Where I part ways from most of my colleagues is how broadly to read the statute.

Since this is a post about statutory interpretation, I’ll include the statute:

Section 230(c)(1) of the CDA states that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In turn, an interactive computer service is:

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Further, an information content provider is:

any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

So, where do I clash with others on this? The primary area is when the operators of the computer service make decisions to publish (or republish) content. I’ll give three examples that courts have determined are immune, but that I think do not fall within the statute:

Web Site A pays Web Site B to republish all of B’s content on Site A. Site A is immune.

Web Site A selectively republishes some or all of a story from Web Site B on Site A. Site A is immune.

Web Site A publishes an electronic mail received by a reader on Site A. Site A is immune.

These three examples share a common thread: Site A is immune, despite selectively seeking out and publishing content in a manner that has nothing to do with the computerized processes of the provider. In other words, it is the operator, not the service, that is making publication determinations.

To address these issues, cases have focused on “development” of the information. One case, for example, defines development as a site that “contributes materially to the alleged illegality of the conduct.” Here, I agree with my colleagues that development is being defined too broadly to limit immunity. Development should mean that the provider actually creates the content that is displayed. For that reason, I agree with the Roommates.com decision, which held that Roommates developed content by providing pre-filled dropdown lists that allegedly violated the Fair Housing Act. It turns out that the roommate postings were protected speech, but that is a matter of substance, and not immunity. The fact that underlying content is eventually vindicated does not mean that immunity should be expanded. To the extent some think that the development standard is limited only to development of illegal content (something implied by the text of the Roommates.com decision), I believe that is too limiting. The question is the source of the information, not the illegality of it.

The burning issue is why plaintiffs continue to rely on “development” despite its relatively narrow application. The answer is that this is all they currently have to argue, and that is where I disagree with my colleagues. I believe the word “interactive” in the definition must mean something. It means that the receipt of content must be tied to the interactivity of the provider. In other words, receipt of the offending content must be automated or otherwise interactive to be considered for immunity.

Why do I think that this is the right reading? First, there’s the word “interactive.” It was chosen for a reason. Second, the definition of “information content provider” identifies information “provided through the Internet or any other interactive computer service.” (emphasis added). This implies that the provision of information should be based on interactivity or automation.

There is support in the statute for only immunizing information directly provided through interactivity. Section, 230(d), for example, requires interactive service providers to notify their users about content filtering tools. This implies that the information being provided is through the interactive service. Sections 230(a) and (b) describe the findings and policy of Congress, which describe interactive services as new ways for users to control information and for free exchange of ideas.

I think one can read the statute more broadly than I am here. But I also believe that there is no reason to do so. The primary benefit of Section 230 is a cost savings mechanism. There’s is no way many service providers can screen all the content on their websites for potentially tortious activity. There’s just no filter for that.

Allowing immunity for individualized editorial decisions like paying for syndicated content, picking and choosing among emails, and republishing stories from other web sites runs directly counter to this cost saving purpose. Complaining that it costs too much to filter interactive user content is a far cry from complaining that it costs to much to determine whether an email is true before making a noninteractive decision to republish it. We should want our service providers to expend some effort before republishing.

Hey! Bing is innovating! It has added social to search based on its relationship with Facebook. Oh wait, Google did that with Google+. So is this innovation or keeping up with the Joneses, err Pages and Brins? I thought this move by MS would happen faster given that FB and MS have been in bed together for some time. So did Google innovate while Microsoft and Facebook imitated? Maybe. Google certainly plays catch-up too. The real questions may turn on who executes and/or can execute better. That seems to be part of the innovation game too.

Facebook is top dog in social; Google in search. The thing they both (with MS lurking in the wings to make a big comeback (an odd thing given how well MS does as it is)) are doing is to take recommendations to a new level (with ads thrown in of course). I have tried logged in search. I must say I was surprised. To be clear, I find there is mainly rot in social network data just as there is in search. Whether I would have used Google+ had I not been at Google is unclear. Probably not. But I did. Then I searched for some law review articles and some basic technology information. WOW. The personal results at the top had links to blog posts by people whom I followed on Google + AND THEY WERE…RELEVANT. Blew my mind. My search time went down and I found credible sources faster. Will that last? Who knows? Someone may find ways to game the system, but the small experiences make me hopeful. Now to Facebook and Bing.

If Google can do well with a much smaller set of users for Google +, Facebook and Bing might do really well. After all, Facebook has the social piece and MS has some search computer science types. Whoever wins here may offer the next thing in search. I like conducting logged out searches and logged in. When logged in, I like the potential for seeing things from friends and people I trust. For example, if I start to be interested in cameras and search gives me posts by friends I’d ask anyway, that is a pretty cool result. I can read the post and call the friend for deeper advice or just use what they posted.

All in this space will, of course, cope with privacy concerns etc. But I think that this new level of relevance has the chance to co-exist with those concerns and users may flock to one of these services to have results well-beyond the current ones in search without social. In other words, let the games continue.